Migrants’ lawyers to Flores judge: Parents have right to decide kids’ fate

(Reuters) - Who gets to decide whether migrant parents can keep their families together as they wait for U.S. criminal and immigration proceedings to conclude – the U.S. government or migrant parents who have crossed the border with their kids?

That question is now before U.S. District Judge Dolly Gee of Los Angeles, who oversees decades-old litigation over the government’s treatment of migrant kids, thanks to a court order in a different case in which the ACLU challenged the Trump administration’s since-rescinded policy of separating migrant kids from their parents.

Last week, you’ll recall, U.S. District Judge Dana Sabraw of San Diego issued a sweeping injunction in the ACLU case, barring the Trump Administration from splitting up migrant families and ordering immigration officials to reunite more than 2,000 migrant kids sent to different facilities than their parents. Judge Sabraw held that parents who cross the U.S. border have a constitutional due process right to keep their families together.

Judge Sabraw’s court order was a loss for the Justice Department, which had argued President Trump’s June 20 executive order – which said the administration’s policy was “to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources” — obviated the need for an injunction to end family separation. Judge Sabraw disagreed.

The Justice Department is now trying to turn the loss before Judge Sabraw into leverage with Judge Gee. Gee is in charge of enforcing a 1997 settlement, known as the Flores agreement, that codifies migrant kids’ rights. You need a bit of context to understand how. The Flores settlement, which was drafted in an era in which most underage migrants arrived in the U.S. without their parents, requires kids detained by immigration authorities to be removed from adult facilities in a matter of days – either to be released to family members or legal guardians; or to be transferred to facilities that meet states’ child-welfare standards. The Trump administration previously cited the Flores agreement to justify separating migrant children from parents.

After the president’s executive order, the Justice Department moved to modify the terms of the Flores settlement, arguing that the existing agreement, and a 2016 interpretation of the agreement by the 9th U.S. Circuit Court of Appeals, prohibits immigration officials from permitting families to stay together while they’re in detention. DOJ asked Judge Gee in Los Angeles to suspend the Flores requirement that migrant kids be held in facilities licensed by state child welfare authorities. Without that change, Justice lawyers said, “it is not possible for the U.S. government to detain families together during the pendency of their immigration proceedings.”

Judge Sabraw’s injunction, of course, requires the federal government to do exactly what DOJ told Judge Gee it could not: detain families together. So last week, after Judge Sabraw issued his order instructing the government to reunite migrant parents and kids, the Justice Department filed a notice before Judge Gee about the injunction. It said the Trump Administration was doing its best to comply with Judge Sabraw’s injunction – but it said the new order underscores the need for changes in Flores’s terms. “We believe that the Flores agreement permits the government to detain families together to comply with the nationwide order,” it said. “We nevertheless continue to believe that an amendment of the Flores agreement is appropriate to address this issue.”

To be clear: DOJ seems to me to have backed away from its previous assertion that without its requested change in Flores terms, it flat out cannot hold detained migrant parents and kids together through the end of their proceedings. To the contrary, DOJ’s latest filing said the government now reads the Flores agreement, in combination with Judge Sabraw’s order, to hold that “minors who are apprehended with families may not be separated from their parents where it is determined that continued detention is appropriate for the parent.”

In fact, the DOJ filing acknowledges that lawyers who have for decades represented the migrant kids covered by the Flores settlement have long argued that the Flores agreement allows parents to choose to keep their kids with them. Given the terms of Judge Sabraw’s order in the ACLU case, the DOJ brief said, it makes sense that migrant kids can only be removed from their detained parents “with the accompanying parent’s consent.”

But if the Justice Department really now believes detained parents can decide whether their kids can stay with them in non-licensed detention centers or be transferred out, why is DOJ still asking Judge Gee to modify the terms of the Flores agreement to allow for long-term family detention in unlicensed facilities?

Lawyers for migrant kids say it’s because the Trump administration wants to control the fate of these kids – and if Judge Gee agrees to modify the terms of the Flores settlement to restrict their clients’ rights, she will be giving the government that power.

DOJ, the Flores lawyers said, erected a straw man, insisting that the Sabraw injunction will prevent immigration officials from releasing migrant kids from detention with their parents, as anticipated in the Flores agreement. That’s a “ludicrous” reading of the Sabraw order, the filing said. “Nowhere does the injunction … prevent defendants from releasing a minor” – as long as the migrant kid’s parent wants the child released.

Changing the terms of the Flores agreement to strip migrant kids of hard-won rights, the filing said, is not only unnecessary but also inequitable. “It would permit (the government) to force families to stay together in unlicensed facilities by eliminating class members’ right – subject to opt out by a parent – to be released or placed under the terms of the agreement.” In other words, according to the Flores lawyers, the Trump administration wants seize from migrant parents the power to decide what happens to their kids.

There appears to be a lot of gamesmanship in the most recent Flores filings, with both sides anticipating a battle over whether entire families must be released from custody. The Justice Department notice devotes considerable attention to arguments that Judge Sabraw’s order prohibiting family separation does not require immigration officials to release the parents of migrant kids. The 9th Circuit previously reached that conclusion in its 2016 Flores ruling, but that appeal involved only the due process rights of migrant kids, not their parents. The Flores lawyers’ response points out that nothing in the 1997 agreement nor Judge Sabraw’s ruling prevents the government from choosing to release detained families, as the Obama administration did after losing a bid to modify the Flores agreement in 2016.

An amicus brief by the ACLU in the Flores case hinted at why the government is trying to squelch arguments for family release: The ACLU contends the administration cannot detain immigrant families in order to deter future asylum-seekers from coming to the U.S.

But that’s a fight for another day. For now, the question is whether Trump officials or migrant parents control the fate of migrant kids. Judge Gee has a lot to think about.